The British Columbia Environment Appeal Board (Board) recently ruled that a consultant who had acted as agent for one of the parties to an environmental appeal could not testify as an expert witness on behalf of that party. Parties seeking assistance from their technical experts in applications for regulatory permits or subsequent appeals should exercise caution before having them assist in a manner that makes them appear as an advocate, as it may limit their ability to rely on the consultant’s professional independence.
Jack and Linda Chisholm v. Assistant Water Manager was an appeal to the Board regarding a water licence amendment. The appellants had retained an independent consultant to assist with water licensing issues, including investigating the history of the water licences on their property and communicating with the respondent water manager regarding the application to amend the licence. When the water manager refused the application, the consultant acted as agent for the appellants in the appeal itself, including preparing submissions and representing them during the hearing. When the appellants attempted to call the consultant to give opinion evidence in the oral hearing, the respondent objected, arguing that the consultant was not sufficiently independent to qualify as an expert witness. The Board reviewed the consultant’s role in both the application for the amendment and the appeal, finding he had acted as the appellants’ agent, signed correspondence on their behalf and used language that indicated he was advocating for them. The Board held that the consultant could not testify as an expert witness, as he was not sufficiently independent from the appellants to qualify to provide opinion evidence. He was allowed to testify as a lay witness, giving factual evidence only.
It is common for consultants to communicate with regulators on behalf of their clients in applications for permits and licences, and it is not unusual for such consultants to advocate for a specific outcome. It is also not unusual for consultants to provide assistance to clients in filing and preparing for appeals to the Board. This is particularly the case with individuals and small businesses. This decision may signal a shift in the Board’s approach in allowing consultants who have acted as agents for a party to give opinion evidence. It is unclear whether the decision was made solely because of the consultant’s actions in the appeal itself, or whether advocating on behalf of the clients in the application for the licence amendment would have been sufficient to disqualify the expert. Consultants should consider the potential for this occurring before advocating for a specific outcome in a regulatory application, or agreeing to act as agents for parties seeking to appeal regulatory decisions to the Board, as it may prejudice their client’s ability to rely on their independent professional opinion later on.
